from the back-again dept

Pre-postscript: I realized down at the end of this that it's all about uncool lawyering, and I didn’t get to the most uncoolest of them all, the DOJ. Steel up, because scary DOJ stories roll in at an alarming pace.

That said, we're working an attorney theme today from Hey, to Schadenfreude, then on to Censorious Douchebaggery.

The Hey: I am an Internet Lawyer in San Diego, which essentially means that I am a business litigation and transactional attorney who is deeply into internet and technology. I like to maintain a modicum of separation between my personal opinions and my professional life, hence the handle. I read Techdirt and other tech/law blogs regularly because ... well, things have changed -- radically -- several times, over the eight years I have been focused on Internet Law, and you gotta stay on top of this stuff.

My job is not to file lawsuits -- it is to resolve problems that the client needs resolved; to be the buffer between my client and the other guy. Lawsuits are what you do when nothing else works. It feels good to be me because I help people who need my skills. Yet, some lawyers can't seem to remember that they are nothing but a particular skill set and their own reputation, i.e., that being ethical actually does pay. Cue the trolls.

I have had it in for legal trolls and shakedown lawyers for over a decade -- first brought to my attention by the Trevor Law Group who used CA's wonderful unfair competition law (UCL @ Bus. & Prof. Code §17200 et seq.) to shake down small-time hair salons and auto repair shops, etc. for a couple grand over alleged minor code violations. Those attorneys ultimately resigned to dodge being disbarred.

Trolls subvert the legal process; make things worse for the good guys; do nothing for the greater good -- or, often, even their clients (if they really have one). They royally piss me off. So yeah, watching Prenda flame out across my universe is about as enjoyable as listening to the garbage they spout is infuriating (and hilarious). The hubris. Watching Prenda help to sound the national death knell for copyright trolling in general is … heartening. (Certain commenters' ill-formed *beliefs* notwithstanding, the Prenda debacle is a big deal of epic scale.)

The Schadenfreude: And so the blitzblurb of the Prenda stories going down this week: First Paul Hansmeier asks the Appeals Court to stay Judge Wright's hefty sanctions order … except, you have to ask Judge Wright in District Court, not the 9th Dist. App. Ct., which same court notes that meanwhile, "you can't play here in your other class-action objection appeal thingy, Paul." Ouch. Other Prendites also request a stay the same way, and get the same result, with a Special Added Bonus Benchslap for the failure to pay and improper last minute filing: $1,000 per day, per individual party, for each day they don't pay or post bond, and an OSC to explain themselves regardless. Yikes. If you are an individual and the shell companies … do the math. (As a general rule, Judges do not like last minute requests; really don't like ongoing patterns of last minute requests; and especially don’t like them when coming from parties who have already caused the Court paroxysms of judicial fury.)

Then we move over to Minnesota (man, I had some serious fun there in my youth), where the real Alan Cooper had sued Prenda and some Prendites over that silly misappropriation-of-Cooper's-name-on-legal-documents business. We had a quick report by TD on a default hearing, then a lovely writeup by non-lawyer observer Matthew Sparby, who appears to have nailed the overtly emotional proceeding, with the Court throwing nasty words like "fraud" around freely. I, too, can attest that this judicial response as reported was most unusual. But I add that in 16 years of litigation practice, here's what to expect at any hearing, no matter how prepared you are: Whatever you didn't think of beforehand.

But there was actually kind-of-good news for the Prendites with two cases likely going away less painfully than what could have been, and we move on to Prenda in Georgia, with Jacques Nazaire. God I love this lawyer! He stacks on the nutty like gobs of Nutella on Milton's Multi-Grain. Frankly, I don't know what he was talking about -- I just see Chewbacca Defense -- so just read the story.
In legal parlance, there's this thing called the "laugh test." You might have heard of it. We have a duty to zealously advocate, and can make untested good-faith arguments, but you want to pass the laugh test even when your case is not receiving widespread coverage.

Censorious DBs: Speaking of nutty, we had DH's story about Ferrero's Nutella brand spread, and its C&D Brand Brigade (temporarily) shutting down an avid fan's World Nutella Day, an unmitigated Nutella lovefest run by a fan whom Ferrero had worked with for years. This ties in with the story about the NY Times going all ... well, NY Timesey with NYT's overreaching "brand protection" efforts. As I noted in the comments, I've seen firsthand their legal department's attitude. It does not appear to be about the better good of the publication, or the big picture at all. It's one thing to C&D a party who reproduced their lauded multimedia piece as an example of the party's new publishing software. Forgivable at best. It's quite another thing to say: "You need to remove any reference to the New York Times from your website..." Er, you need to stop being a censorious asshat … infinity! Let's see if she complies.

I'm super freaking happy to learn that Nutella backed down (per the article update). Was it overzealous lawyers or public backlash? Probably both. Nutelladay.com posts Ferrero's release about the "fix," saying it was a "routine brand defense procedure." Ahh, so that's what causes all this crap to rain down on those who mention a brand. Here in the 9th Circuit, it's called Nominative Use. It's not trademark infringement to reference a mark if that's the only practical way to get the point across. (Please pay attention, Super Bowl. Yeah, I said it. Super Bowl Super Bowl Super Bowl.)

As to the overzealous brand lawyers, I'm being diplomatic with the term. I recall a stupid lawsuit over PPC keyword advertising filed out-of-state against my client. No real warning, no asking nicely; no merit -- {insertion codes} were putting the other Co's name in my client's ad. Easy fix had they asked before suing. I was not at all subtle with these guys -- to the point that local counsel had to play "good cop" -- and after all this back and forth, opposing counsel finally says, "We brought the client into the loop, and ...." WTF? Client wasn't in the loop during lawsuit filing and negotiations? The law firm was driving the bus? Yeah, there's some incentive to resolve problems, eh?

Stunningly weirdly, about the time I finished the previous couple paragraphs and took a food break, TD posted a discussion of the Adam Savage interview about unreasonable brand control. I had this closing bit in mind to sum my hypothesis of the above, and basically Mr. Savage says it for me right there. So I'll just post what he said:

The other thing is to make a qualifiable assessment of what the best business practices for them are. In so many corporations you end up with this battle between the PR department -- who really does understand how to reach out to the fans and put everyone under a nice umbrella -- and the legal department which wants nothing to do with them... and is somehow anti-the fans.... So wake up legal departments. We know that you guys work hard and are smart people. But you need to understand a little bit more about this before you send these nastygrams.

from the keep-calm-and-carreon dept

Could there have been a better week to get to write about my favorite Techdirt
posts? (Still thinking ... er, No.) What with last week’s public meltdown
of well-known attorney Charles Carreon spilling over into Lunes (Loony Monday),
Techdirt opened this week with a blurb that Carreon had indeed filed a
Fresh
& Loony lawsuit -- currently serving as a poster child for Wrath of the
Spurned.

If you didn’t know, we have Carreon suing cartoonist Inman/The Oatmeal
because Inman didn’t dig Carreon demanding $20k from him for alleged defamation
of Funnyjunk. (This started off because Inman didn't appreciate Funnyjunk users posting Inman's
comics there without attribution or linkback, and being rather in-your-face
about it, Inman wrote an open letter of complaint, containing previously mentioned alleged defamation.) So rather than pay Funnyjunk, Inman instead starts a charity fundraiser --
including some pretty crude Funnyjunk mom-bashing -- which goes gangbusters,
and then Carreon takes it all super personally (including the mom bashing [?]). Carreon
tries to shut down the fundraiser, and goes kinda gonzo in the press;
and so Papa Internet (and Mama Internet and all the little nets) go kinda gonzo
on Carreon, and he blames Inman, and sues him ... and the charities ... kind
of. It's a spectacular mess.

So later Monday morning we get: Carreon's
Full Filing Reveals He Donated To Oatmeal Campaign Himself, Plus Other Assorted
Nuttiness; and what a read!. Quick procedural problems include: Carreon
donated to Inman's charity in an attempt to create standing for himself
to bring the case re the charities (Red Flag!); he names the two charities in
the header, but doesn't direct any of the claims toward them (Danger Will
Robinson!); and he otherwise clearly demonstrates his lack of understanding
of all things Internet. Well, you're stuck here now. (Open the pod bay door,
Hal. / I'm sorry Dave, I'm afraid I can't do that.)

There's a whole lotta other crazy in there as well that's totally
worth reading. I will add that the charities' likely 12(b)(6) motion for failure to state a claim will be the first that I've ever seen where the
failure to state a claim involves actual failure to make a claim against
a party, at all.

Then we have Inman getting a (much less vitriolic than before) word in with
an open letter addressed to Carreon, where he urges Carreon to calm down, and stop
saying crazy shit to journalists. I gotta say, “Don't say crazy
shit to journalists” is pretty much all-around good advice; this week's
mantra.

But Wait ... There's More! Now it's off to subpoena
the identity of the Twitter user who set up the Carreon parody account then
stopped trying to parody when he couldn't top the real thing. And there's
the amazing Tara Carreon, about which I have to defer to an AC
comment from last Friday to describe: If it's a troll, it's like no
trolling I've ever tasted.”

The whole situation is freaking mind boggling, and so puerile it's irresistible.
And while wildly entertaining, it's also terribly ugly and it's sad,
and I truly wish Carreon had not taken this path. If he hasn't already,
he's going to wind up jackin' it in San Diego, metaphorically speaking.

Let's Talk About Disruption (and the like): I'm an urban guy.
Lived smack dab in the city for decades. When we can, we buy local. These are
our merchants, our neighbors. If we support them, it benefits
my urban community, and therefore me. More broadly, we try to buy direct when
possible, and generally trying to ensure that the people who are actually doing
the work (creating, cooking, whatever) get the highest percent of our cash as
possible. So even at just-about-middle-age, when I should be averse to change,
that philosophy leaves me absolutely loving watching the destruction
of the old world for the new, from Kickstarter and crowdfunding in general,
to all those other new, disruptive businesses that wreak so much havoc.

I'm currently funding, like, four Kickstarter projects, meaning, I'm
giving somebody money to make something cool stuff for the world -- specifically,
me. (Seriously: A baseball horror graphic novel. Monsters and baseball!) So
this week I'll point to some more Kickstarter changeup stories -- showing
how a platform can be harnessed in ways likely its own creators didn't
imagine. First, there's the Fat
Kid Rules The World film project, another film project... except
you or I could set up a showing and keep some of the dough. Groovy. And there's
this so-obvious-it's-brilliant idea of using crowdfunding for Empirical
Market Research. Author Seth Godin and a publisher ran a campaign to gauge
the interest in an upcoming book. Answer: If you write it, they will come.

[Happy Camper Joke Here] On a personal note, I want to mention David
Lowery, of Camper Van Beethoven, who appears in these pages periodically saying
... well, I'm never sure. I think it has to do with the
old days being better -- back in happy GatekeeperLand, or something. I'm
pretty sure it's a bitch about how hard it is to make money now. Anyway,
Mr. Lowery, I recently bought several Camper albums (on CD even!) to replace
the cassettes wanting for tape deck. Which albums did I buy? The first
three. The independent label albums, because the major label albums sucked
in comparison. Have a nice day.

I live very close to a University, which Yik Yak caters to, so I check the posts periodically. Platform and users are pretty good about weeding out high-schoolers, et al.

Yes, there are some offensive things said there; yes, perhaps even hate-crimey things said there. But, they get downvoted pretty quickly, and it only takes like 5 downvotes to disappear the post.

Like many platforms, it self-polices pretty well from what I have seen. Granted, this is California, not NC, but students are students, and tend to be from all over. So let the students decide what they think should not be on Yik Yak. They have the power to do so.

In CA, the issue of Employee v. Indy Contractor has tests that breed results all over the map. The bottom line query is who controls the manner and means of production. Factors to consider include the degree of control exercised by the company, whose equipment & offices, etc.

Here, the big tell for me is the IC's don't have to work at all if they don't want to (per my understanding). And it seems a thorny issue is that Uber/Lyft may set the prices, but are otherwise just the platform (unlike, say, a web developer who is an IC, but is still given specific tasks by the company, not third-party site users).

The public requests the service, the platform sends it out, a driver picks it up. That sounds like IC to me.

But ... then there is the fact that in many (other) legal contexts, the law is designed to weigh in favor of finding the party an employee (which makes sense as far as companies who regularly try to screw their workers with creative workarounds to making them employees).

Anyway, let's freaking hope they aren't found employees, as that would seem to set a dangerous precedent to online platforms in general.

NOTE: Robert Reich's story is a humanist piece about a normative world. It is about the way he thinks the law should be, not necessarily what it is.

When a coffee shop or somesuch wants my name so they can call it out when my order is ready, I tell them "Zeus."

I use "Jetson." They say, "Jenson?" "No, Jetson." "Johnson?" Then I get to act like I've had a lifetime of dealing with this, and slightly exasperated say, "JETSON ... like the cartoon." And by then they think I'm serious. Gotta maintain deadpan though.

Except ... my "home" burn phone is the original landline home number now piggy-backed on my biz VoIP acct, and we moved since then, so the number is tied to an old address, if at all, but not the biz address.

We've long referred to our home phone number as the burner. It's only used when signing up for things online or at stores, etc. where they want your phone #. So all the subsequent telemarketing calls go there and we don't bother to answer it at all.

I also have multiple burner email addresses, not directly tied to me, for use in querying sketchy businesses, etc.

None of them are temporary, but the word "burner" immediately gets the point across.

So we have a group of Techdirt writers -- who read, research, write about, and basically live with these issues all day every day -- discussing at length whether an article about banning hate speech is satire. Apparently still without consensus.

The general public is certainly less likely to spot the satire than this group of subject-matter educated writers. Therefore the article, spreading via its own controversy, is likely to breed more converts to the destruction of free speech than "ah-hahs" at its cleverness. The potential damage to freedoms is incalculable.

Looks like you're right that you don't have to be member of patent bar to litigate court cases involving patents.

Nonetheless, lawyers do have an ethical duty to only take cases they are competent to handle. If one were actually competent to litigate a patent case, one would think they could pass the patent bar, and as such, would.

"Trial lawyers" are just a convenient scapegoat. They are a group that has been turned into an effective populist bad guy regardless of the situation.

Meanwhile, the actual patent bar is a tiny subset of the bar in general because it requires special extra credentials.

Agreed. As a business litigation attorney, I am a "trial lawyer" in the broad sense. The vast majority of trial lawyers, including myself, are not qualified to touch patent law. Further, the few patent attorneys I do know do not represent patent trolls. There are -- really, it's true -- actual inventors creating actual patentable products for market, and ethical patent attorneys out there to represent them.

Of course patent trolls suck, but semantically, "patent bar" is a more accurate description and doesn't drag unrelated good guys into it.

Your position assumes that the panties were actually infringing -- even civilly, let alone criminally -- which has not been established. Would the panties have caused a likelihood of confusion as to the source of the product? Perhaps, but not established.

Regardless, this is clearly a homegrown smalltime operation, raising the question why this would be considered a criminal infringement, investigated on our dime. A Cease & Desist from the Royals would have done it.

For criminal infringement/counterfeiting, one needs a bit more than for civil infringement, e.g.:

The mark is "identical with, or substantially indistinguishable from" the genuine trademark. 18 U.S.C. § 2320 (d)(1)(a)(ii). This element assures that not every case of trademark infringement amounts to trademark counterfeiting. The "indistinguishable from" standard is to be interpreted on a case-by-case basis.

Also from the link: the mark has to be registered in the USPTO Principal Register. I did a quick search, and the "KC Royals" as well as "KC" marks are registered, of which the panties are not substantially similar in my view.

What I am looking at looks like a cheap copy. It is not necessarily "identical with or substantially indistinguishable" nor would it necessarily create likelihood of confusion. It is a poor case-study for criminal liability. Yet, here comes the DHS...

Oh, look ... the attorney has been practicing less than two years, and is already running his own law firm. That's reasonable. And surely not a recipe for problematic claims not based in reality... (calbar.ca.gov)

Guessing the attorney used his own Bar Number as a starting point for the damages, then scaled back to 250 for "reasonableness," then changed it to millions.

A personal injury attorney who takes an intersection collision case will often check the timing of the lights to see if there is a case against the City for negligently timed lights (for the deep pockets). 500ms yellows would be a good one. And the $ thus begins flowing the wrong direction (not to mention the needlessly dead people).

Actually, that is incorrect. Both are legal terms of art, so your arguments do not matter.

CDA 230 is an immunity. A service provider is immune from liability for statements of its users (non IP).

DMCA is a safe harbor (for copyright infringement). You have to go through steps (e.g. register an agent with the Copyright office, respond to notices timely, etc.) and if you follow the steps, you are granted safe harbor from liability you are not otherwise immune from.

This Court observed Robertson's demeanor on the witness stand. No transcript can capture his whole affect; you really had to be there.

Given there were discretionary calls here, the appellate review would likely be whether the judge abused his discretion -- a difficult barrier to overcome. An appellate court is generally to defer to the factual findings of the trier of fact (who saw the witness' demeanor, not just the words) -- but sometimes doesn't exactly do that.

So this sentence is likely intended to serve as a reminder, and to stress that as far as transcripts go, this one in particular is not indicative of how over the top Robertson apparently was.